opinion. I regret that so small an amount is at stake, and that probably we shall not have the benefit of his opinion in revision. I think the equity of the debenture-holders is not displaced.

The sheriff must have his costs, including the costs of his appearance to-day, and he may retain his costs out of the money in his hands, and hand the balance over to the receiver. I give no costs against the execution creditor.

Solicitors: Barlow & James, for P. M. Butlin, Birmingham, for the Debenture-holders.

Belfrage & Co., for Reece & Harris, Birmingham,

for the Execution Creditor.

Taylor, Hoare & Pilcher, for the Sheriff.

A. E. R.

BRINSLEY v. LYNTON AND LYNMOUTH HOTEL AND PROPERTY CO.

1895, March 9. KEKEWICH, J.

Practice Debenture holder's Action to enforce Security-Form of Order.

In an action by a debenture-holder, suing on behalf of himself and all other debenture-holders, and which is brought on as a short cause, the Court can preface the judgment with a declaration "that the plaintiff and the other holders of debentures issued by the defendant company are entitled to a charge on the property designated in the debentures as security for the moneys thereby secured, although it cannot declare priorities.

THIS was a debenture-holders' action by a debenture-holder, suing on behalf of himself and all the other debenture-holders in the defendant company, and now came on, on motion for judgment in default of defence, as a short cause. The minutes contained the following declaration: "Declare that the plaintiff and the other holders of the debentures issued by the defendant company and referred to in the statement of claim, are entitled to a charge on the undertaking of the defendant company, and all its property whatsoever and wheresoever for securing the principal money and interest in the said debentures mentioned," and concluded in the common form in a debenture-holders' action to enforce their security.

H. T. Eve, for the debenture-holders:

VAUGHAN WILLIAMS, J., refuses to make a declaration of charge on a short cause. He says he has ROMER, J.'s, authority for the refusal. In Wallace v. Universal Automatic Machines Co. (1) the judgment which was settled by KAY, L.J., contains such a declaration.

Martelli, for the company.

KEKEWICH, J.: The only declaration that I refuse to make is that the debenture-holders have a first charge, because I cannot declare priorities in the absence of all parties. There are two kinds of declarations. I have referred to one. On the other side of the line

(1) 7 R. 316; [1894] 2 Ch. 547; 63 L. J. Ch. 598; 70 L. T. 852; 1 Mans. 315.

are the declarations with which we are all familiar: "Declare that the trusts of the will of the testator ought to be performed and carried into execution, and order and adjudge the same accordingly." Again, in judgments for specific performance, we also say: "Declare that the contract dated so and so ought to be specifically performed and carried into execution in case a good title can be made to the premises comprised therein, and order and adjudge the same accordingly." Where I have the debentures properly before me, either set out in the pleadings, or exhibited to an affidavit, my present opinion is that the proposed order is right in form, so long as the description of the property charged follows that set out in the debentures.

Solicitors: Stanley Woodhouse & Hedderwick, for all Parties.

A. E. R.

[FROM THE SUPREME COURT OF NEW SOUTH WALES.] NEWTON AN! OTHERS V. DEBENTURE HOLDERS OF THE ANGLO-AUSTRALIAN INVESTMENT FINANCE AND LAND CO.*

1895, January 24; March 6.

Company--Power to Charge Uncalled Capital-Companies Act, 1862 (25 & 26 Vict. c. 89).

The memorandum of association of a limited company stated one of its objects to be "to receive money on loan or deposit or otherwise, and upon any security of the company or upon the security of any property of the company or without giving security," and by the articles of association the total amount to be called up in respect of shares was not to exceed a certain sum except by a special resolution of the company :

Held, that the directors had power to create a charge over the whole of the uncalled capital of the company.

In re Pyle Works (1) followed.

THE Anglo-Australian Investment Finance and Land Company (Limited) was incorporated in 1880 as a company limited by shares under the colonial statute 37 Vict. No. 19, known as the Companies Act, 1874, the provisions of which are for the purposes of this case identical with those of the English Companies Act, 1862. The company was in course of voluntary liquidation.

A question arose in the winding up, between holders of debentures claiming to have a first charge on the capital of the company which remained uncalled at the commencement of the liquidation, and a large body of persons who had money on deposit with the company and who were creditors without security. In the Supreme Court of New South Wales this question was decided in favour of the debenture-holders by the chief Judge in equity, who held that the directors of the company had power to create a charge over all the uncalled capital of the company. The appeal was brought on behalf of the depositors from his decision.

* Lord HERSCHELL, L.C., Lords WATSON, HOBHOUSE, MACNAGHTEN, SHAND, and DAVEY and Sir R. COUCH.

(1) 44 Ch. D. 534; 59 L. J. Ch. 489; 62 L. T. 887; 38 W. R. 674.

Lyttelton Chubb and E. E. Fletcher, for the appellants, referred to In re Pyle Works (1). The cases go to show that anything which is not expressly authorised is prohibited. There must be something in the context to show that the power of borrowing includes a power to give a charge over uncalled capital: In re Phoenix Bessemer Steel Co. (2).

[Lord HERSCHELL, L.C.: If the company were not intended to have this power, it ought to have been expressly excluded in the memorandum of association.]

Our contention is that the company must incorporate in its memorandum of association all the powers of importance which it intends to exercise: In re Whitehouse (3), Blacks' case (4).

Sir R. Webster, Q.C., and George Henderson, for the respondents:

In re Pyle Works (1) covers this case; the words in the memorandum here are quite as wide as they were there.

Lyttelton Chubb, in reply.

March 6.

Their Lordships' judgment was delivered by

Lord MACNAGHTEN: [his Lordship stated the facts, and continued] In the argument before their Lordships the appellants disputed the priority claimed by the debenture-holders on three grounds. (i.) They maintained that it is not competent for any company limited by shares to create a charge upon its uncalled capital, so as to confer priority in the winding up. (ii.) They contended that in the present case a charge on uncalled capital was impliedly prohibited by the terms of the memorandum of associaand (iii.) they argued that if the charge was valid to any extent it did not apply to so much of the uncalled capital as was reserved

tion;

(2) 44 L. J. Ch. 683; 32 L. T. 854; affirmed 4 Ch. D. 108; 46 L. J. Ch. 115; 35 L. T. 776; 25 W. R. 187.

(3) 9 Ch. D. 595; 47 L. J. Ch. 801; 39 L. T. 415; 27 W. R. 181.

(4) L. R. 8 Ch. 254; 42 L. J. Ch. 404; 28 L. T. 50; 21 W. R. 249.